POLITICAL ASYLUM

Ali & Bains, P.C. understands what is at risk when an individual is applying for asylum, and appreciates how afraid our clients are of returning to a place where they were persecuted.

Individuals who believe that returning to their home country would endanger themselves physically or mentally may apply for asylum in the United States. A grant of asylum permits the asylee to remain in the United States in valid status with employment authorization incident to status. The asylee may apply for adjustment of status to permanent resident after living in the United State for one year after the date of the grant of asylum. The waiting period for adjustment of status to permanent resident can take many years due to a limit on the number of asylees who can become permanent residents each year. An individual is eligible for a discretionary grant of asylum if he meets the definition of a “refugee” in the Immigration and Nationality Act, is eligible for a favorable exercise of discretion, and is not barred for other reasons from obtaining asylum.

TYPES OF ASYLUM APPLICATIONS

There are two types of asylum applications: affirmative applications and defensive applications. The affirmative asylum application is filed with the asylum designated service center for the region where the applicant lives and is sent to the regional asylum hearing office. An interview is scheduled and the applicant appears at the hearing to present his case. Asylum cases filed from New York City are interviewed at the U.S. Citizenship and Immigration Services Asylum Office in Queens, New York. Attorneys at Ali & Bains, P.C work with the applicant to prepare the asylum case and accompany the applicant to the asylum interview. Ali & Bains, P.C. provides extensive interview preparation for our clients. The interview can last for an hour or more. Interpreters are needed if the applicant cannot speak English fluently. The applicant must provide the translator. If the applicant is in status, the decision will be mailed to the applicant within a few weeks of the interview. If the asylum applicant is out of status, the decision must be picked up at the asylum office by the applicant. If an in status applicant’s petition is likely to be denied, a notice of intent to deny is mailed to the applicant. The applicant then has time in which to respond to the notice of intent to deny. If the asylum petition is denied after the in status applicant responds to the notice of intent to deny, the applicant may apply for asylum again. If the out of status applicant’s case is not granted at the asylum office, the applicant is referred to immigration court where the applicant may present his asylum case to the immigration judge.

HOW TO APPLY

These are the general procedures for obtaining asylum through the affirmative asylum process. They do not apply to those asylum-seekers who are in removal proceedings before an Immigration Judge. The following is a basic outline of what steps an applicant must take to be granted asylum in the United States.

STEP BY STEP APPLICATION PROCESS

Step One: Asylum-Seeker Arrives in the United States An asylum-seeker may apply for asylum while physically present in the United States or at a port of entry, regardless of the individual’s immigration status. See INA § 208(a).

Step Two: Asylum-Seeker Applies for Asylum An asylum-seeker may apply for asylum with USCIS only if he or she is not in immigration proceedings before the Immigration Judge, which means he or she has not been placed in removal proceedings.
Asylum applications must be filed within one year after the individual’s arrival in the United States, unless the individual can demonstrate “changed circumstances” that materially affect eligibility for asylum or “extraordinary circumstances” relating to the delay in failing to apply for asylum within one year. The asylum-seeker must apply for asylum within a reasonable time given those circumstances. See INA § 208(a)(2) and 8 CFR § 208.4.
The one-year deadline is calculated from the date of the individual’s last arrival in the U.S. or April 1, 1997, whichever is later. An asylum-seeker may be ineligible to apply for asylum if he or she previously applied for asylum and was denied asylum by the Immigration Judge or Board of Immigration Appeals (unless he or she can demonstrate the existence of changed circumstances which materially affect his or her eligibility for asylum).
An asylum-seeker may also be ineligible if he or she could be sent to a safe third country with which the United States has a bilateral or multilateral agreement. See INA § 208(a)(2) and Bars to Applying for Asylum.
To apply, an asylum-seeker will need to complete Form I-589, Application for Asylum and for Withholding of Removal, and must mail a completed application package to the Service Center that has jurisdiction over the individual’s place of residence. Once the Service Center has received the completed application, the Service Center will send the applicant a notice acknowledging receipt of the application.
An asylum-seeker may ask for derivative asylum status for his or her spouse and children who are physically present in the United States. The child must be under 21 years of age at the time the asylum-seeker files the application and unmarried. See What About My Spouse and Children?

Step Three: Applicant is Fingerprinted and Background Security Checks Conducted USCIS will send a notice to any applicant between 14 and 79 years of age to go to an Application Support Center or authorized Designated Law Enforcement Agency to have his or her fingerprints taken. The fingerprints will be sent to the Federal Bureau of Investigation (FBI) for a background/security check. The FBI will send those results to USCIS.
A copy of the application will be sent to the U.S. Department of State for a background/security check.
The asylum-seeker’s biographical information will also be sent to the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA) for a background check, and Immigration will check other law enforcement databases with the asylum-seeker’s biographical information.

Step Four: Applicant Receives Interview Notice The applicant will then be scheduled for an interview with an Asylum Officer, either at one of the eight asylum offices, or at a district office, depending on the applicant’s residence.
Applicants who are scheduled to be interviewed at one of the eight asylum offices will generally receive the interview notice within 21 days after filing the application.
Applicants who are scheduled to be interviewed at a district office may receive their interview notices at a later date.
Asylum officers regularly travel to conduct asylum interviews in district offices in many locations throughout the country. To determine the jurisdictions of the eight asylum offices, see the details for each Asylum Office: Arlington, VA; Chicago, IL; Houston, TX; Los Angeles, CA; Miami, FL; Newark, NJ (Lyndhurst); New York, NY (Rosedale); and San Francisco, CA.

Step Five: Applicant is Interviewed by an Asylum Officer An applicant has the right to bring an attorney or accredited representative to the interview. An applicant must bring any spouse and/or children who are included as dependents in the asylum decision.
An applicant who does not speak English fluently must bring an interpreter to the interview. The interpreter must be at least 18 years old and cannot be the applicant’s representative or attorney of record, a witness testifying on the applicant’s behalf, or an employee or representative of the applicant’s home country. See 8 CFR § 208.9(g).
The interview will generally last about an hour, although the time may vary depending on the case. The applicant will be asked to take an oath promising to tell the truth during the interview.
The Asylum Officer will:

Ask the applicant questions to determine if he or she meets the definition of a refugee;

Ask whether any bars apply to being granted asylum.

Regulations protect the confidentiality of the information the applicant provides to the Asylum Officer. See 8 CFR § 208.6.
The applicant and his or her attorney or representative will have time at the end of the interview to make a statement or add any additional information.
A decision will not be made at the asylum interview. See 8 CFR § 208.9.

Step Six: Asylum Officer Makes Determination on Eligibility and Supervisory Asylum Officer Reviews the Decision
An applicant must be a refugee in order to be eligible for asylum. The definition of a refugee is found in INA § 101(a)(42)(A) and requires that the applicant be:

unable or unwilling to return to or avail himself or herself of the protection of the country of his or her nationality or, if stateless, the country where he or she last habitually resided because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion

Under INA § 101(a)(42)(B) an applicant who establishes past persecution or a well-founded fear of persecution on account of resistance to a coercive population control (CPC) program is considered to have established persecution on account of political opinion.
These include, but are not limited to:

applicants who were forced to abort a pregnancy or undergo involuntary sterilization;

or those who failed or refused to undergo these procedures.

The Asylum Officer will also determine whether any mandatory bars apply.
A Supervisory Asylum Officer will then review the decision. Certain cases, such as those involving possible persecutors, are referred to the Asylum Division Headquarters for review.

Step Seven: Applicant Receives Decision In most cases, the applicant will be required to return to the asylum office two weeks after the interview to receive a decision on the application.

If USCIS has decided that the applicant is eligible for asylum, the applicant will either be given a final approval letter depending on whether the asylum office has received the information from the FBI background/security check. Only once that information has been received and all other background security checks are complete can the Asylum Officer issue a final approval of the asylum application.

If USCIS has decided that the applicant is not eligible for asylum, the applicant will either be referred to an Immigration Court or will receive a Notice of Intent to Deny asylum. This depends on whether the applicant appears to be in the United States illegally. If the applicant is not in lawful status in the United States, the asylum office will issue the applicant charging documents that place him or her in removal proceedings in Immigration Court. The asylum office will also refer the asylum application to the Immigration Court for an Immigration Judge to decide during the removal proceedings. The applicant will be given the date, time, and place of the hearing when the applicant returns to the asylum office to receive the asylum decision.

If the applicant is in lawful status, the asylum office will not refer the asylum application to the Immigration Court. Instead, the asylum office will send the applicant a Notice of Intent to Deny explaining the reasons the applicant has been found ineligible for asylum. The applicant will be given 16 days to provide a response before the final decision is made. After reviewing the applicant’s response, if one is sent, the asylum office will either approve the asylum application (based on the response) or deny it (if the response does not overcome the reasons the applicant was found ineligible for asylum).

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At Ali & Bains, P.C., with over 40 years of combined experience, our criminal defense attorneys are prepared to take on any criminal matter and provide you with the defense you deserve against any prosecutorial force.